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advocacy community education
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New Federal Rules
as of December 1, 2010
Before these recent amendments, you
had to be wary in all your communica-
tions with the lawyer who hired you to
testify, because those communications
were not covered by any protections
against disclosure. What lawyers and
judges refer to as the "work product
protections" did not apply. Those pro-
tections shield from disclosure the
work of a lawyer in representing a
client. But ever since the 1993 amend-
ments to the federal rules, judges have
refused to apply work product protec-
tions to testifying expert witnesses.
The result has been increased pre-trial
costs, retention of both consulting and
testifying witnesses (communications
with consulting witnesses have always
been within the work product protec-
tions, barring exceptional circum-
stances), guarded communications
between retaining counsel and testify-
ing experts, and lawyers' strategies
that protect against discovery but also
interfere with the work of experts all
undesirable effects.
To remedy this situation, work product
protections now apply in federal court
as to a testifying expert's communica-
tions with retaining counsel. Now, if
you are retained to testify in federal
court, all your communications with the
lawyer who hired you whether oral or
written are protected. So if you are
deposed, or called to testify in court,
you cannot be required to disclose
those communications.
Likewise, your draft expert reports are
protected from disclosure. What must
be included in your report? You must
include: a) a complete statement of all
opinions you will express, and the
basis and reasons for them; b) the data
or other information you considered in
forming them; c) any exhibits that you
intend to use to summarize or support
New Rules for Expert Testimony and
How to Make It Admissible
By Stewart I. Edelstein, J.D.
Y
ou need to know about recent changes in the Federal Rules of Civil
Procedure and how they contrast with state court rules if you testify in
courts in Connecticut. It makes a big difference whether you are
retained to testify in federal court or in state court. This article summarizes the
present state of the law in both courts affecting testifying expert witnesses.